Cite as: 558 U. S.

____ (2010)

Per Curiam

SUPREME COURT OF THE UNITED STATES

ERIC PRESLEY v. GEORGIA
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME

COURT OF GEORGIA

No. 095270. Decided January 19, 2010

PER CURIAM.
After a jury trial in the Superior Court of DeKalb
County, Georgia, petitioner Eric Presley was convicted of a
cocaine trafficking offense. The conviction was affirmed
by the Supreme Court of Georgia. 285 Ga. 270, 674 S. E.
2d 909 (2009). Presley seeks certiorari, claiming his Sixth
and Fourteenth Amendment right to a public trial was
violated when the trial court excluded the public from the
voir dire of prospective jurors. The Supreme Court of
Georgias affirmance contravened this Courts clear prece
dents. Certiorari and petitioners motion for leave to
proceed in forma pauperis are now granted, and the judg
ment is reversed.
Before selecting a jury in Presleys trial, the trial court
noticed a lone courtroom observer. Id., at 270271, 674
S. E. 2d, at 910. The court explained that prospective
jurors were about to enter and instructed the man that he
was not allowed in the courtroom and had to leave that
floor of the courthouse entirely. Id., at 271, 674 S. E. 2d,
at 910. The court then questioned the man and learned
he was Presleys uncle. Ibid. The court reiterated its
instruction:
Well, you still cant sit out in the audience with the
jurors. You know, most of the afternoon actually
were going to be picking a jury. And we may have a
couple of pre-trial matters, so youre welcome to come
in after we . . . complete selecting the jury this after
noon. But, otherwise, you would have to leave the

PRESLEY v. GEORGIA
Per Curiam

sixth floor, because jurors will be all out in the hall

way in a few moments. That applies to everybody
whos got a case. Ibid.
Presleys counsel objected to the exclusion of the public
from the courtroom, but the court explained, [t]here
just isnt space for them to sit in the audience. Ibid.
When Presleys counsel requested some accommoda
tion, the court explained its ruling further:
Well, the uncle can certainly come back in once the
trial starts. Theres no, really no need for the uncle to
be present during jury selection. . . . [W]e have 42 ju
rors coming up. Each of those rows will be occupied
by jurors. And his uncle cannot sit and intermingle
with members of the jury panel. But, when the trial
starts, the opening statements and other matters, he
can certainly come back into the courtroom. Ibid.
After Presley was convicted, he moved for a new trial
based on the exclusion of the public from the juror voir
dire. At a hearing on the motion, Presley presented evi
dence showing that 14 prospective jurors could have fit in
the jury box and the remaining 28 could have fit entirely
on one side of the courtroom, leaving adequate room for
the public. App. to Pet. for Cert. E37, E41. The trial
court denied the motion, commenting that it preferred to
seat jurors throughout the entirety of the courtroom, and
its up to the individual judge to decide . . . whats com
fortable. Id., E38. The court continued: Its totally up
to my discretion whether or not I want family members in
the courtroom to intermingle with the jurors and sit di
rectly behind the jurors where they might overhear some
inadvertent comment or conversation. Id., at E42 to E
43. On appeal, the Court of Appeals of Georgia agreed,
finding [t]here was no abuse of discretion here, when the
trial court explained the need to exclude spectators at the
voir dire stage of the proceedings and when members of

Cite as: 558 U. S. ____ (2010)

Per Curiam

the public were invited to return afterward. 290 Ga. App.

99, 100101, 658 S. E. 2d 773, 775 (2008).
The Supreme Court of Georgia granted certiorari and
affirmed, with two justices dissenting. After finding the
trial court certainly had an overriding interest in ensuring
that potential jurors heard no inherently prejudicial re
marks from observers during voir dire, the Supreme
Court of Georgia rejected Presleys argument that the trial
court was required to consider alternatives to closing the
courtroom. 285 Ga., at 272, 273, 674 S. E. 2d, at 911. It
noted that the United States Supreme Court [has] not
provide[d] clear guidance regarding whether a court must,
sua sponte, advance its own alternatives to [closure], and
the court ruled that Presley was obliged to present the
court with any alternatives that he wished the court to
consider. Id., at 273, 674 S. E. 2d, at 911, 912. When no
alternatives are offered, it concluded, there is no abuse of
discretion in the courts failure to sua sponte advance its
own alternatives. Id., at 274, 674 S. E. 2d, at 912.
This Courts rulings with respect to the public trial right
rest upon two different provisions of the Bill of Rights,
both applicable to the States via the Due Process Clause of
the Fourteenth Amendment.
The Sixth Amendment
directs, in relevant part, that [i]n all criminal prosecu
tions, the accused shall enjoy the right to a speedy and
public trial . . . . The Court in In re Oliver, 333 U. S. 257,
273 (1948), made it clear that this right extends to the
States. The Sixth Amendment right, as the quoted lan
guage makes explicit, is the right of the accused.
The Court has further held that the public trial right
extends beyond the accused and can be invoked under the
First Amendment. Press-Enterprise Co. v. Superior Court
of Cal., Riverside Cty., 464 U. S. 501 (1984) (PressEnterprise I). This requirement, too, is binding on the
States. Ibid.
The case now before the Court is brought under the

PRESLEY v. GEORGIA
Per Curiam

Sixth Amendment, for it is the accused who invoked his

right to a public trial. An initial question is whether the
right to a public trial in criminal cases extends to the jury
selection phase of trial, and in particular the voir dire of
prospective jurors. In the First Amendment context that
question was answered in Press-Enterprise I. Id., at 510.
The Court there held that the voir dire of prospective
jurors must be open to the public under the First Amend
ment. Later in the same Term as Press-Enterprise I, the
Court considered a Sixth Amendment case concerning
whether the public trial right extends to a pretrial hearing
on a motion to suppress certain evidence. Waller v. Geor
gia, 467 U. S. 39 (1984). The Waller Court relied heavily
upon Press-Enterprise I in finding that the Sixth Amend
ment right to a public trial extends beyond the actual
proof at trial. It ruled that the pretrial suppression hear
ing must be open to the public because there can be little
doubt that the explicit Sixth Amendment right of the
accused is no less protective of a public trial than the
implicit First Amendment right of the press and public.
467 U. S., at 46.
While Press-Enterprise I was heavily relied upon in
Waller, the jury selection issue in the former case was
resolved under the First, not the Sixth, Amendment.
Press-Enterprise I, supra, at 516 (STEVENS, J., concurring)
(The constitutional protection for the right of access that
the Court upholds today is found in the First Amendment,
rather than the public trial provision of the Sixth (foot
note omitted)). In the instant case, the question then
arises whether it is so well settled that the Sixth Amend
ment right extends to jury voir dire that this Court may
proceed by summary disposition.
The point is well settled under Press-Enterprise I and
Waller. The extent to which the First and Sixth Amend
ment public trial rights are coextensive is an open ques
tion, and it is not necessary here to speculate whether or

Cite as: 558 U. S. ____ (2010)

Per Curiam

in what circumstances the reach or protections of one

might be greater than the other. Still, there is no legiti
mate reason, at least in the context of juror selection
proceedings, to give one who asserts a First Amendment
privilege greater rights to insist on public proceedings
than the accused has. Our cases have uniformly recog
nized the public-trial guarantee as one created for the
benefit of the defendant. Gannett Co. v. DePasquale, 443
U. S. 368, 380 (1979). There could be no explanation for
barring the accused from raising a constitutional right
that is unmistakably for his or her benefit. That rationale
suffices to resolve the instant matter. The Supreme Court
of Georgia was correct in assuming that the Sixth Amend
ment right to a public trial extends to the voir dire of
prospective jurors.
While the accused does have a right to insist that the
voir dire of the jurors be public, there are exceptions to
this general rule. [T]he right to an open trial may give
way in certain cases to other rights or interests, such as
the defendants right to a fair trial or the governments
interest in inhibiting disclosure of sensitive information.
Waller, 467 U. S., at 45. Such circumstances will be rare,
however, and the balance of interests must be struck with
special care. Ibid. Waller provided standards for courts
to apply before excluding the public from any stage of a
criminal trial:
[T]he party seeking to close the hearing must ad
vance an overriding interest that is likely to be preju
diced, the closure must be no broader than necessary
to protect that interest, the trial court must consider
reasonable alternatives to closing the proceeding, and
it must make findings adequate to support the clo
sure. Id., at 48.
In upholding exclusion of the public at juror voir dire in
the instant case, the Supreme Court of Georgia concluded,

PRESLEY v. GEORGIA
Per Curiam

despite our explicit statements to the contrary, that trial

courts need not consider alternatives to closure absent an
opposing partys proffer of some alternatives. While the
Supreme Court of Georgia concluded this was an open
question under this Courts precedents, the statement in
Waller that the trial court must consider reasonable
alternatives to closing the proceeding settles the point.
Ibid. If that statement leaves any room for doubt, the
Court was more explicit in Press-Enterprise I:
Even with findings adequate to support closure, the
trial courts orders denying access to voir dire testi
mony failed to consider whether alternatives were
available to protect the interests of the prospective ju
rors that the trial courts orders sought to guard. Ab
sent consideration of alternatives to closure, the trial
court could not constitutionally close the voir dire.
464 U. S., at 511.
The conclusion that trial courts are required to consider
alternatives to closure even when they are not offered by
the parties is clear not only from this Courts precedents
but also from the premise that [t]he process of juror
selection is itself a matter of importance, not simply to the
adversaries but to the criminal justice system. Id., at
505. The public has a right to be present whether or not
any party has asserted the right. In Press-Enterprise I, for
instance, neither the defendant nor the prosecution re
quested an open courtroom during juror voir dire proceed
ings; in fact, both specifically argued in favor of keeping
the transcript of the proceedings confidential. Id., at 503
504. The Court, nonetheless, found it was error to close
the courtroom. Id., at 513.
Trial courts are obligated to take every reasonable
measure to accommodate public attendance at criminal
trials. Nothing in the record shows that the trial court
could not have accommodated the public at Presleys trial.

Cite as: 558 U. S. ____ (2010)

Per Curiam

Without knowing the precise circumstances, some possi

bilities include reserving one or more rows for the public;
dividing the jury venire panel to reduce courtroom conges
tion; or instructing prospective jurors not to engage or
interact with audience members.
Petitioner also argues that, apart from failing to con
sider alternatives to closure, the trial court erred because
it did not even identify any overriding interest likely to be
prejudiced absent the closure of voir dire. There is some
merit to this complaint. The generic risk of jurors over
hearing prejudicial remarks, unsubstantiated by any
specific threat or incident, is inherent whenever members
of the public are present during the selection of jurors. If
broad concerns of this sort were sufficient to override a
defendants constitutional right to a public trial, a court
could exclude the public from jury selection almost as a
matter of course. As noted in the dissent below, the
majoritys reasoning permits the closure of voir dire in
every criminal case conducted in this courtroom whenever
the trial judge decides, for whatever reason, that he or she
would prefer to fill the courtroom with potential jurors
rather than spectators. 285 Ga., at 276, 674 S. E. 2d, at
913 (opinion of Sears, C. J.).
There are no doubt circumstances where a judge could
conclude that threats of improper communications with
jurors or safety concerns are concrete enough to warrant
closing voir dire. But in those cases, the particular inter
est, and threat to that interest, must be articulated along
with findings specific enough that a reviewing court can
determine whether the closure order was properly en
tered. Press-Enterprise I, supra, at 510; see also PressEnterprise Co. v. Superior Court of Cal., County of River
side, 478 U. S. 1, 15 (1986) (The First Amendment right
of access cannot be overcome by the conclusory assertion
that publicity might deprive the defendant of [the right to
a fair trial]).

PRESLEY v. GEORGIA
Per Curiam

We need not rule on this second claim of error, because

even assuming, arguendo, that the trial court had an
overriding interest in closing voir dire, it was still incum
bent upon it to consider all reasonable alternatives to
closure. It did not, and that is all this Court needs to
decide.
The Supreme Court of Georgias judgment is reversed,
and the case is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.

Cite as: 558 U. S. ____ (2010)

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

ERIC PRESLEY v. GEORGIA
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME

COURT OF GEORGIA

No. 095270. Decided January 19, 2010

JUSTICE THOMAS, with whom JUSTICE SCALIA joins,

dissenting.
Today the Court summarily disposes of two important
questions it left unanswered 25 years ago in Waller v.
Georgia, 467 U. S. 39 (1984), and Press-Enterprise Co. v.
Superior Court of Cal., Riverside Cty., 464 U. S. 501 (1984)
(Press-Enterprise I).
I respectfully dissent from the
Courts summary disposition of these important questions.
First, the Court addresses whether it is so well settled
that [a defendants] Sixth Amendment right to a public
trial extends to jury voir dire that this Court may proceed
by summary disposition. Ante, at 4. The Courts affirma
tive answer to this question relies exclusively on Waller
and Press-Enterprise I; but those cases cannot bear the
weight of this answer.
The Court correctly notes that Waller answers whether
a defendants Sixth Amendment right to a public trial
applies to a suppression hearing (not to jury voir dire),
467 U. S., at 43, and that Press-Enterprise I interprets the
publics First Amendment right to attend jury voir dire,
464 U. S., at 509, n. 8, so neither Waller nor PressEnterprise I expressly answers the question here, see ante,
at 4. That acknowledgment should have eliminated any
basis for disposing of this case summarily; the Court
should reserve that procedural option for cases that our
precedents govern squarely and directly. See, e.g., United
States v. Haley, 358 U. S. 644 (1959) (per curiam) (summa
rily reversing a federal courts judgment that refused to
follow, or even mention, one of our precedents upholding

PRESLEY v. GEORGIA
THOMAS, J., dissenting

the statute in issue under identical circumstances).

The Court nevertheless concludes that Waller and PressEnterprise Iin combinationwell settl[e] the point.
Ante, at 4. It admits that [t]he extent to which the First
and Sixth Amendment public trial rights are coextensive
is an open question, but, apparently extrapolating from
Press-Enterprise I, asserts that there is no legitimate
reason, at least in the context of juror selection proceed
ings, to give one who asserts a First Amendment privilege
greater rights to insist on public proceedings than the
accused has. Ante, at 45. But this conclusion decides by
implication an unstated premise: that jury voir dire is part
of the public trial that the Sixth Amendment guarantees.
As JUSTICE STEVENS recognized in Press-Enterprise I, that
case did not decide this issue. See 464 U. S., at 516 (con
curring opinion) (If the defendant had advanced a claim
that his Sixth Amendment right to a public trial was
violated by the closure of the voir dire, it would be impor
tant to determine whether the selection of the jury was a
part of the trial within the meaning of that Amendment).
Until today, that question remained open; the majority
certainly cites no other case from this Court answering it.
Yet the Court does so hereeven though the Supreme
Court of Georgia did not meaningfully consider that ques
tion, and petitioner does not ask us to do so.* I am unwill

* In full, petitioners two questions presented state:

I. This Court has established that the public cannot be expelled from a
courtroom unless the presence of the public creates a substantial
probability of prejudice to an overriding interest. But is some case
specific evidence required to meet this substantial probability test, or
can generalized fears that would apply equally to nearly every trial
suffice?
II. This Court has repeatedly held that a trial court must consider
reasonable alternatives to closing a proceeding before it can exclude the
public. But who bears the burden of suggesting such alternatives?
Must the proponent of closure establish that closure is necessary, in
that there are no reasonable alternatives available? Or to overcome a

Cite as: 558 U. S. ____ (2010)

THOMAS, J., dissenting

ing to decide this important question summarily without

the benefit of full briefing and argument.
Second, I am also unwilling to join the Court in reading
the alternatives to closure language it quotes from
Waller and Press Enterprise I as squarely foreclosing the
decision of the Supreme Court of Georgia. See ante, at 6.
The Court chides the Supreme Court of Georgia for con
clud[ing], despite our explicit statements to the contrary,
that trial courts need not consider alternatives to closure
absent an opposing partys proffer of some alternatives.
Ante, at 56 (emphasis added). But neither Waller nor
Press-Enterprise I expressly holds that jury voir dire is
covered by the Sixth Amendments [P]ublic [T]rial
Clause. Accordingly, it is not obvious that the alterna
tives to closure language in those opinions governs this
case.
Even assuming the Court correctly extends Waller and
Press-Enterprise I to this (Sixth Amendment voir dire)
context, neither opinion explicit[ly] places on trial courts
the burden of sua sponte suggesting alternatives to closure
absent an opposing partys proffer of some alternatives.
Ante, at 6. The statement that a trial court must con
sider reasonable alternatives to closing the proceeding,
ibid. (quoting Waller, supra, at 48), does not definitively
establish who must suggest alternatives to closure that the
trial court must then consider, nor does it expressly ad
dress whether the trial court must suggest such alterna
tives in the absence of a proffer. I concede that the lan
guage can easily be read to imply the latter, and the Court
may well be right that a trial court violates the Sixth
Amendment if it closes the courtroom without sua sponte
considering reasonable alternatives to closure. But I
would not decide the issue summarily, and certainly would

closure motion must an opponent of closure establish that reasonable

alternatives do exist? Pet. for Cert. i.

PRESLEY v. GEORGIA
THOMAS, J., dissenting

not declare, as the Court does, that Waller and PressEnterprise I settl[e] the point without leav[ing] any
room for doubt. Ante, at 6.
Besides departing from the standards that should gov
ern summary dispositions, todays decision belittles the
efforts of our judicial colleagues who have struggled with
these issues in attempting to interpret and apply the same
opinions upon which the Court so confidently relies today.
See, e.g., Ayala v. Speckard, 131 F. 3d 62, 7072 (CA2
1997) (en banc), cert. denied, 524 U. S. 958 (1998); 131
F. 3d, at 7475 (Walker, J., concurring); id., at 7780
(Parker, J., dissenting). The Courts decision will also
surely surprise petitioner, who did not seek summary
reversal based on the allegedly incorrect application of
this Courts well-established precedents by the Supreme
Court of Georgia, but instead asked us to resolve this
split of authority over whether the opponent of closure
must suggest alternatives to closure or whether those
seeking to exclude the public must show that there is no
available less-intrusive alternative. Pet. for Cert. 18.